Intestate Succession

Question 1

CP and QCP Intestate Succession

Answer 1

CP = surviving spouse gets 100% of decedent’s 1/2 share of CP

QCP = surviving spouse gets 100% of decedent’s 1/2 share of QCP

Question 2

SP Intestate Succession

Answer 2

1. surviving spouse/domestic partner
   - no issue/parent/sibling/issue of deceased sibling = 100% of SP
   - one issue/parents/issue of parents = 50% of SP
   - more than one issue/issue of predeceased children = 33% (1/3) of SP
2. no surviving spouse/domestic partner
   - issue
   - parents
   - issue of parents (siblings)
   - grandparents
   - issue of grandparents (aunts, uncles)
   - issue of a predeceased spouse
   - next of kin
   - parents of a predeceased spouse (in-laws)
   - escheats to the state

Question 3

Intestate Succession: Distribution Scheme

Answer 3

(1) equal issue = per capita
(2) unequal issue
- per capita w/ right of representation = 1st level of issue w/ living issue (default rule)
- per stirpes = 1st level of issue

Question 4

Intestate Succession: Survival Rule

Answer 4

Heir must survive decedent by at least 120 hours to inherit intestate

• burden of proof = clear and convincing evidence
• exception: property escheats to state = survival rule not applicable

Question 5

Intestate Succession: Adopted Children

Answer 5

Adopted Parents & Relatives = Inherit
- adopted children will inherit from their adoptive parents and their relatives and vice versa

Natural Parent = No inheritance

• adoption destroys the inheritance relationship b/w adopted child and his/her natural parents
• exceptions:
  (1) adopted by spouse/domestic parent of either natural parent; or
  (2) adopted after death of either natural parent - for this to apply, however, the natural parent and adopted child must have lived together at some point

Question 6

Intestate Succession: Stepchildren & Foster Children

Answer 6

Treated as adopted children if

(1) relationship began during child’s minority;
(2) relationship continued throughout both parties’ lifetimes; and
(3) clear and convincing evidence of adoption but for legal barrier

Question 7

Intestate Succession: Non-Marital Children

Answer 7

Yes, if parent-child relationship existed

Equal Protection violation - statutes that allow a children to inherit from their mothers but not from their fathers violate the Equal Protection clause of the 14th Amendment

Mother = non-marital children inherit through their mother

Father = parent-children relationship presumed if
(1) children born during actual or attempted marriage
(2) married or attempted to marry
(a) before children’s birth and birth within 300 days
(b) after child’s birth
[1] father named on birth certificate;
[2] father makes voluntary promise to pay child support; or
[3] father ordered to pay child support by court;
(3) holding child out as his own

Same rules apply to non-birthing domestic partner

Question 8

Intestate Succession: Half-Bloods

Answer 8

definition = relationship existing b/w persons having the same father or mother, but not both parents in common

rule = half bloods inherit the same share as whole bloods

Question 9

Posthumous Heirs

Answer 9

definition = heirs conceived during the intestate’s lifetime, but born after the intestate’s death

posthumous relatives = considered to have been born during the lifetime of the intestate and are deemed heirs of the intestate

posthumous children = considered to have been born during the lifetime of the intestate and are deemed heirs of the intestate

Question 10

Posthumously Conceived Children

Answer 10

definition = use of intestate’s sperm to conceive child after death of the intestate

treated as born during instate’s lifetime and deemed heirs if

(1) posthumous conception authorized in writing
(a) signed and dated; and
(b) designates person in control
(2) written notice within 4 months; and
(3) conceived and in utero within 2 years

burden of proof = clear and convincing evidence